http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9

CASE NO.:

Appeal (crl.) 649 of 1996

PETITIONER:

STATE OF HIMACHAL PRADESH

Vs.

RESPONDENT:

GIAN CHAND

DATE OF JUDGMENT: 01/05/2001

BENCH:

CJI, R.C. Lahoti & Doraiswamy Raju

JUDGMENT:

R.C. Lahoti, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

The accused-respondent was charged under Section 376 IPC

for having committed forcible sexual intercourse with the

prosecutrix, a girl of the age of the 5 years and 6 months,

on 29.10.1991 at about 6.30 p.m. at Village Baru. On

trial, the learned Sessions Judge found the accused guilty

and sentenced him to undergo rigorous imprisonment for a

period of 10 years and to pay a fine of Rs.5,000 and in

default of payment of fine to undergo rigorous imprisonment

for a further period of 6 months. The amount of fine, if

realised, was directed to be paid to the mother of the

prosecutrix. The accused- respondent preferred an appeal.

A Division Bench of the High Court has by judgment dated

22.12.1995 allowed the appeal, set aside the conviction and

directed the accused-respondent to be released. Feeling

aggrieved thereby, the State of Himachal Pradesh has come up

in appeal by special leave which has been granted.

PW1 is the mother of the prosecutrix. Her husband had

expired a few years before the date of the incident. She

was residing in the family house. However, her

father-in-law, her two brothers-in-law and she herself had

separated in residence and they were living in three

separate portions of the house. PW1 has a son and two

daughters. The prosecutrix is the youngest of the three

children. The accused is brother of wife of PW1s

brother-in-law, i.e., jeth or her deceased husbands

brother. The accused, being a relation, was often visiting

the house. According to the prosecution on the date of the

incident, PW1 had gone to the fields for collecting grass.

Her son and the elder daughter had accompanied her. They

returned to home at about 7 p.m. PW1, on her return, found

her youngest daughter lying below a cot on the lintel of the

house. Her salwar and shirt were having blood stains.

There was blood on the bed sheet and a towel lying on the

cot. She looked into the private parts of the victim child

and found blood and inflammation therein. On being asked,

the prosecutrix told the mother, that when she was playing

the accused had committed Bura Kaam (a sinful act) with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9

her. The mother PW1 told about the incident the next

morning to her parents-in-law and co-sister (i.e. husbands

brothers wife). The father of the accused was summoned and

was told of what the accused had done. The father of the

accused defended his son saying that he could not have

indulged into such a wrongful act. On the third day, in the

morning hours, when PW1 was going to police station, Ruldu

Ram, PW9, a member of village Panchayat met her on way and

agreeing with her advised PW1 to lodge the report with the

police. The FIR of the incident was lodged in the morning

of 31.10.1991. An offence under Section 376 IPC was

registered and the investigation commenced.

On 31.10.1991 at 12.15 p.m. Dr. Mudita Gupta, PW5,

conducted medico-legal examination of the prosecutrix and

found the following injuries on her person :

Local Exam - No external injury. On retracting the

labia - erythema seen. Hymen torn - irregular edges.

Posterior vaginal wall tear about 0.5 cm in length. No

blood clot seen. No evidence of healing, no pus seen - foul

smell.

Tenderness. No sperms were seen.

The observations noted by Dr. Mudita Gupta were that

the prosecutrix had changed her clothes and taken a bath

also on the next day of the incident. The victim had passed

urine and stool about one hour after the incident. There

was no external injury on any part of the body of the

victim. Dr. Mudita Gupta opined that possibility of

commission of rape on the prosecutrix on 29.10.1991 could

not be ruled out.

The accused was arrested on 31.10.1991 and subjected to

medico-legal examination on the same day. Dr. Jagdish

Gupta P.W.6, who examined the accused, recorded the result

of his medico-legal examination as under:-

The general behaviour of the patient was normal. The

mental condition was normal. Bath not taken for the last

five days. Urine passed many times. Passing motion

normally.

No stains were found on the body of the patient. Clothing and

under-garments.

No injury marks were present on genitals.

No venereal disease was found.

On examination of genital, pubic hairs were present.

Penis normal, prepuse retracted, frenum normal. Testicles

were normal. There were following injuries present on his

person:-

Multiple contusions, some of them were patterned on

back, buttocks posteromedial aspect of thigh. Redish in

colour.

Dr. Jagdish Gupta opined that there was nothing to

suggest that the accused was not fit to perform sexual

intercourse.

At the trial the prosecutrix appeared as PW7 and her

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9

mother was examined as PW1. The prosecutrix was 8 years of

age at the time of her examination. The Court conducted

preliminary examination of the witness and observed that the

witness understood the sanctity of oath and then proceeded

to examine her after administering oath to her. She stated

that the accused was known to her as he was the brother of

her Mausi (Aunt) and was on visiting terms with her Mausi

residing in her neighbourhood. On the date and at the time

of the incident the accused came to her house in the absence

of her mother or any other member of the family, untied the

string of her salwar and also untied the string of his

kachcha (underwear). Thereafter the accused put his organ

into her private part. The learned Sessions Judge has noted

in the statement of the witness that the witness had

specifically stated that the accused had inserted his penis

into her private part and due to the act committed by the

accused blood had started oozing out of her. The accused

remained at the place of the incident for one or two minutes

and thereafter disappeared. She had felt pain when the act

was committed by the accused. The accused had made the

prosecutrix lie down on the cot which was spread on the

lintel of the house. At that time the sun had set in and

darkness had started spreading. The mother returned to home

at about 8 p.m. when she narrated the incident to her.

PW1, the mother of the prosecutrix, has corroborated the

version of the victim.

The doctors, who had examined the prosecutrix and the

accused respectively, appeared in the witness box and stated

the results of the respective medico-legal examinations

conducted and observations made by them as noticed

hereinabove. Ruldu Ram, PW9 corroborated the version of

PW1. Smt. Premi, co-sister of PW1, appeared in the witness

box as PW8 but she turned hostile and denied having any

knowledge of the occurrence. The learned Sessions Judge

found the prosecution story having been substantiated fully

by the prosecution evidence. He found the prosecutrix and

her mother truthful witnesses and worthy of credence. The

version of the prosecutrix stood corroborated by the

testimony of her mother and the latter testimony stood

corroborated by the statement of Ruldu Ram, PW9, the village

Panch and the FIR. The learned Sessions Judge also found

that the medical testimony corroborates the version of the

incident as given by the prosecutrix. The clothes of the

prosecutrix were blood-stained. The salwar which was worn

by the prosecutrix at the time of the incident and which was

seized by the police was sent for chemical examination.

According to the report of Chemical Examiner of State of

Punjab spermatozoa was detected on the salwar though not on

the shirt of the prosecutrix and underwear of the accused.

The learned Sessions Judge convicted the accused and

sentenced him as stated hereinabove.

A perusal of the judgment of the High Court shows that

delay in lodging the FIR, change in the description by PW1

of the exact place where the prosecutrix was raped (i.e.

shifting of the scene of incident), and non-examination of

two or three little girls who were playing with the

prosecutrix soon before the incident - are the factors,

which have persuaded the learned Judges of the High Court in

forming an opinion that prosecution story was doubtful. The

learned Judges have also noted that the prosecutrixs hymen

could have been ruptured by a fall also and there was no

corresponding injury on the private parts of the accused

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9

which factors taken together rendered the prosecution story

doubtful.

Here it would be worthwhile to mention that in his

statement under Section 313 of the Cr.P.C. the accused

denied the prosecution story and at the end of the statement

stated that he was suffering from mental disorder at the

time of the incident. While the learned Sessions Judge

found the plea raised by the accused of no significance, the

learned Judges of the High Court have observed that in view

of the mental condition of the appellant who was suffering

from schizophrenia before and after the occurrence there is

a reasonable doubt as regards one or more of the ingredients

of the offence. In support of such observation the High

Court has referred to the decision of this Court in

Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat - (1964)

2 Cr.L.J. 472.

We have heard the learned counsel for the parties. Shri

Anil Soni, the learned counsel appearing for the State of

Himachal Pradesh has vehemently attacked the judgment of the

High Court submitting that on the evidence available the

findings arrived at by the learned Sessions Judge were not

liable to be interfered with and the judgment of the High

Court verges on perversity. An entirely unmerited acquittal

and that too from a serious charge where an innocent girl of

tender years was raped by a distant relation of hers in her

own house has occasioned a gross failure of justice and

therefore the judgment of the High Court deserves to be set

aside, submitted the learned Counsel for State. Shri Shrish

Kumar Misra, the learned counsel for the respondent has

supported the judgment of the High Court. Having carefully

considered the contending submissions, we are of the opinion

that the appeal deserves to be allowed and the judgment of

the High Court deserves to be set aside. We have given our

thoughtful consideration to the submission made and have

independently appreciated the evidence to satisfy our

judicial conscious. We deal with each of the reasonings

which have prevailed with the High Court in doubting the

prosecution story.

Delay in lodging the FIR cannot be used as a ritualistic

formula for doubting the prosecution case and discarding the

same solely on the ground of delay in lodging the first

information report. Delay has the effect of putting the

Court in its guard to search if any explanation has been

offered for the delay, and if offered, whether it is

satisfactory or not. If the prosecution fails to

satisfactorily explain the delay and there is possibility of

embellishment in prosecution version on account of such

delay, the delay would be fatal to the prosecution.

However, if the delay is explained to the satisfaction of

the court, the delay cannot by itself be a ground for

disbelieving and discarding the entire prosecution case. In

the present case, PW1__the mother of the prosecutrix is a

widow. The accused is a close relation of brother of late

husband of PW1. PW1 obviously needed her family members

consisting of her in-laws to accompany her or at least help

her in lodging the first information report at the police

station. The incident having occurred in a village, the

approach of the in-laws of PW1 displayed rusticity in first

calling upon the father of the accused and complaining to

him of what his son had done. It remained an unpleasant

family affair on the next day of the incident which was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9

tried to be settled, if it could be, within the walls of

family. That failed. It is thereafter only that the

complainant, the widow woman, left all by herself and having

no male family member willing to accompany her, proceeded

alone to police station. She was lent moral support by

Ruldu Ram, the village Panch, whereupon the report of the

incident was lodged. The sequence of events soon following

the crime and as described by the prosecution witnesses

sounds quite natural and provides a satisfactory explanation

for the delay. It was found to be so by the learned

Sessions Judge. The High Court has not looked into the

explanation offered and very superficially recorded a

finding of the delay having remained unexplained and hence

fatal to the prosecution case. It is common knowledge and

also judicially noted fact that incidents like rape, more so

when the perpetrator of the crime happens to be a member of

the family or related therewith, involve the honour of the

family and therefore there is a reluctance on the part of

the family of the victim to report the matter to the police

and carry the same to the court. A cool thought may precede

lodging of the FIR. Such are the observations found to have

been made by this Court in State of Punjab Vs. Gurmit Singh

& Ors., (1996) 2 SCC 384 and also in the case of Harpal

Singh (1981) SCC Crl. 208. We are satisfied that the delay

in making the FIR has been satisfactorily explained and

therefore does not cause any dent in the prosecution case.

According to the High Court, the FIR states the

occurrence of rape to have taken place in the room on the

first floor of the building but according to the statement

of PW1 as recorded in the Court, the rape was committed on

the prosecutrix in the open on the lintel of the house thus,

according to the High Court, there was a doubt raised about

the place of the incident which was an infirmity in the

prosecution story. The room and the lintel are situated

close to each other. PW1 is not an eye-witness to the

incident. When she reached home she found her daughter, the

victim of rape lying on the lintel of the house below the

cot. A perusal of the site plan shows the distance between

the two places is insignficant. Moreover, such minor

inconsistency coming from the mouth of PW1, who is not an

eye- witness, was of no significance and caused no infirmity

in the prosecution case when the overall narration of the

incident given by her is found to be natural and

trustworthy. It is pertinent to note that PW1 was only

corroborating the statement of PW7, the young victim of rape

and the latters testimony was found to be very natural and

inspiring confidence by the learned Sessions Judge who had

recorded her statement. The learned Sessions Judge had

himself inspected the site of the incident and noted in his

inspection note inter alia that the other houses were

situated at a distance and another house situated nearest to

the house where incident had taken place was about 50 yards

away. The main road was at a distance of 100 or 150 yards

from the house as shown in the site plan and there was also

a tree which blocked the vision to some extent from the main

road towards the first floor and rooms as shown in the site

plan on the first floor. Thus, the place of the incident

was secluded one and not visible from distance. Similar

facts were deposed to by the investigating officer. The

learned Sessions Judge had rightly noted in his judgment,

relying on the evidence adduced and the observations made at

the time of spot inspection, that the room and the lintel

are situated near to each other and therefore the so-called

inconsistency was immaterial and insignificant. The High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9

Court was not right in ignoring this finding of the trial

court or even otherwise making this insignificant

discrepancy, if at all it is a discrepancy, a major lacuna

in the prosecution case. It is not so.

So far as non-examination of other witnesses and an

adverse inference drawn by the High Court therefrom is

concerned, here again we find ourselves not persuaded to

subscribe to the view taken by the High Court. The

prosecutrix PW7 has stated that soon before the incident she

was playing with three girl-children of the same age as of

hers and they were present when the accused committed rape

on her. One of the girls picked up a broom and had tried to

scar away the accused by striking the broom on him. This

little friend of the victim had also raised a hue and cry

but none from the neighbourhood came to the spot. These

girls were none else than daughters of her uncle. What the

High Court has failed to see is that these girls were of

tender age and could hardly be expected to describe the act

of forcible sexual intercourse committed by the accused on

PW7. Secondly, these girls would obviously be under the

influence of their parents. We have already noted the

co-sister of PW1 turning hostile and not supporting the

prosecution version. How could these little girls be

expected to be away from the influence of their parents and

depose freely and truthfully in the Court? Non-examination

of a material witness is again not a mathematical formula

for discarding the weight of the testimony available on

record howsoever natural, trustworthy and convincing it may

be. The charge of withholding a material witness from the

Court levelled against the prosecution should be examined in

the background of facts and circumstances of each case so as

to find whether the witnesses were available for being

examined in the Court and were yet withheld by the

prosecution. The Court has first to assess the

trustworthiness of the evidence adduced and available on

record. If the Court finds the evidence adduced worthy of

being relied on then the testimony has to be accepted and

acted on though there may be other witnesses available who

could also have been examined but were not examined.

However, if the available evidence suffers from some

infirmity or cannot be accepted in the absence of other

evidence which tough available has been withheld from the

Court then the question of drawing an adverse inference

against the prosecution for non-examination of such

witnesses may arise. It is now well-settled that conviction

for an offence of rape can be based on the sole testimony of

prosecutrix corroborated by medical evidence and other

circumstances such as the report of chemical examination

etc. if the same is found to be natural, trustworthy and

worth being relied on. If the evidence of the prosecutrix

inspires confidence, it must be relied upon without seeking

corroboration of her statement in material particulars. If

for some reason the court finds it difficult to place

implicit reliance on her testimony, it may look for evidence

which may lend assurance to her testimony, short of

corroboration required in the case of an accomplice. The

testimony of the prosecutrix must be appreciated in the

background of the entire case and the trial court must be

alive to its responsibility and be sensitive while dealing

with cases involving sexual molestations. ___ is the law

declared in State of Punjab Vs. Gurmit Singh & Ors. (1996)

2 SCC 384. [Also see State of Rajasthan Vs. N.K. -(2000)

5 SCC 30, State of Himach Pradesh Vs. Lekh Raj & Anr. -

(2000) 1 SCC 247, Madan Gopal Kakkad Vs. Naval Dubey and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9

Anr. - (1992) 3 SCC 204]. In the present case we are

clearly of the opinion that in view of the accused being a

relation of the in-laws of the mother of the prosecutrix and

the other young girls who are alleged to have been not

examined being from the family of such in-laws, it is futile

to expect that such girls would have been allowed by their

parents to be examined as witnesses, and if allowed, could

have freely deposed to in the Court. The question of

drawing an adverse inference against the prosecution for

such non-examination does not arise.

The observations made and noted by Dr. Mudita Gupta

during medico legal examination of PW7 clearly make out the

prosecutrix having been subjected to rape. The prosecutrix

has spoken of penetration in her statement. The discovery

of spermatozoa in the private part of the victim is not a

must to establish penetration. There are several factors

which may negative the presence of spermatozoa. [See -

Narayanamma Vs. State of Karnataka - (1994) 5 SCC 728].

Slightest penetration of penis into vagina without rupturing

the hymen would constitute rape. [See - Madan Gopal Kakkad

Vs. Naval Dubey - (1992) 3 SCC 204]. The suggestion made

in the cross examination of Dr. Mudita Gupta that injury of

the nature found on hymen of prosecutrix could be caused by

a fall does not lead us anywhere. Firstly, no such

suggestion was given to prosecutrix or her mother during

cross examination. Secondly, why would the girl or her

mother implicate the accused, charging him with rape, if the

injury was caused by a fall? There is nothing to draw such

an inference not even a suggestion, to be found on record.

Answer to the suggestion made to Dr. Gupta cannot discredit

the prosecution case in the absence of any other material to

support the suggestion. So is the case with absence of

external marks of violence on the body of the victim. In

case of children who are incapable of offering any

resistance external marks of violence may not be found.

(See Modis Medical Jurisprudence, 22nd Edn., p.502). It is

true that marks of external injury have not been found on

the person of the accused but that by itself does not negate

the prosecution case. Modi has opined (see, Modi ibid, page

509) that even in the case of a child victim being ravished

by a grown up person it is not necessary that there should

always be marks of injuries on the penis in such cases.

Further, it is to be noted that about two days had elapsed

between the time of the incident and medical examination of

the accused within which time minor injuries, even if

caused, might have healed.

Lastly, remains the observation of the High Court

regarding mental state of the accused-respondent. The plea

taken by the accused was that he was suffering from some

mental disorder and not that he was insane at the time of

incident. In his defence the accused examined Dr. R.S.

Dalwalia, DW2. He had examined the accused on 9.6.1992 on a

requisition made by jail authorities for his psychiatric

examination. He was diagnosed to be a case of schizophrenia

and necessary treatment was prescribed for him. Before the

commencement of trial the learned Sessions Judge had also

held an enquiry under Section 329 of the Code of Criminal

Procedure to find out if the accused-respondent was fit and

capable to defend himself. Vide order dated 24.6.1993 the

learned Sessions Judge recorded a finding that the accused

was fit to make his defence and accordingly the trial was

proceeded ahead. The only provision of law relevant to the

plea of the accused is Section 84 of the Indian Penal Code,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9

1860 which provides that nothing is an offence which is done

by a person who, at the time of doing it, by reason of

unsoundness of mind, is incapable of knowing the nature of

the act, or that he is doing what is either wrong or

contrary to law. Such is neither the plea nor evidence

adduced by the accused. In Dahyabhais case (supra) relied

on by the High Court, this Court has held - when a plea of

legal insanity is set up, the Court has to consider whether

at the time of commission of the offence the accused, by

reason of unsoundness of mind, was incapable of knowing the

nature of the act or that he was doing what was either wrong

or contrary to law. The crucial point of time for

ascertaining the state of mind of the accused is the time

when the offence was committed. Whether the accused was in

such a state of mind as to be entitled to the benefit of

Section 84 of the Penal Code can only be established from

the circumstances which preceded, attended and followed the

crime. The High Court has picked up and quoted another

passage from the judgment dealing with burden of proof

according to which the burden of proof on the accused is no

higher than that which rests upon a party to civil

proceedings and it is sufficient if the evidence adduced by

the accused raises a reasonable doubt in the mind of the

Court as regards one or more of the ingredients of the

offence including mens rea of the accused though not

establishing conclusively the plea of insanity at the time

of commission of the offence. We fail to understand and

appreciate how the passage quoted by the High Court advanced

the plea of the accused or raised any doubt about his guilt.

On the contrary, the passage reproduced hereinabove from the

judgment of this Court in Dahyabhais case (supra) supports

the prosecution. In the case of Dahyabhai itself

wantonness, vengeful mood or determination of the accused to

see that the victim did not escape was held not sufficient

to prove that the accused was doing the act under some

hallucination. The plea raised before and entertained by

the High Court, in the present case, was one of the accused

suffering from schizophrenia. Schizophrenia is one of a

group of severe emotional disorders, usually of psychotic

proportions, characterized by misinterpretation and retreat

from reality, delusions, hallucinations, ambivalence,

inappropriate affect, and withdrawn, bizarre, or regressive

behavior; Popularly and erroneously called split

personality. [See - Medical- Legal Dictionary, Sloane-

Docland, p. 628]. We are not persuaded to hold even prima

facie, on the material available on record, that the accused

was suffering from unsoundness of mind and that too of a

nature which would have rendered him incapable of knowing

the nature of the act which he was doing or incapable of

distinguishing between wrong or right as per law. The

entire discussion by the High Court on this aspect of the

case was irrelevant and meaningless. The learned counsel

for the respondent has very fairly not persisted in pressing

this plea before us.

In State of Punjab Vs. Gurmit Singh & Ors., (1996) 2

SCC 384, one of us, Dr. A.S. Anand, J. (as His Lordship

then was) has thus spoken for the court __ A murderer

destroys the physical body of his victim, a rapist degrades

the very soul of the helpless female. The courts,

therefore, shoulder a great responsibility while trying an

accused on charges of rape. They must deal with such cases

with utmost sensitivity. The courts should examine the

broader probabilities of a case and not get swayed by minor

contradictions or insignificant discrepancies in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9

statement of the prosecutrix, which are not of a fatal

nature, to throw out an otherwise reliable prosecution

case. The approach adopted by the High Court runs into the

teeth of law so stated and hence stands vitiated. For the

foregoing reasons we hold the judgment of the High Court

wholly unsustainable in law. We are unhesitatingly of the

opinion that the Division Bench of the High Court ought not

to have interfered with the well-reasoned, detailed and

well-articulated judgment of the Sessions Court wherein we

find no infirmity. For the foregoing reasons the appeal is

allowed. The judgment of the High Court is set aside and

the judgment of the Sessions Court holding the accused

guilty of an offence punishable under Section 376 IPC along

with the sentence passed is restored. The bail bonds of the

accused-respondent are cancelled. He shall be taken into

custody to serve out the sentence passed by the trial court.